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Twice punished? Are criminal plus disciplinary proceedings fair?

This question periodically arises: Is it unfair for a person to be dealt with in both the ‘criminal jurisdiction’ and then again in the ‘discipline jurisdiction’ for the same conduct?

It is not that unusual – sports persons, medical staff, teachers, police officers and privately employed staff all routinely face serious consequences from their employer or registration body separate from any penalty (or acquittal) the courts impose. This employment/disciplinary action is often far more severe than the action taken by the courts.

On 14 June 1991 the front page of The Courier-Mail carried an article reporting comments made by the Queensland Police Union to the Criminal Justice Commission Parliamentary Committee. The union criticised the Criminal Justice Commission for not applying “normal British justice standards” to police who had accusations made against them.

Specifically, the union complained about police who had been cleared by the courts still having to face police disciplinary proceedings.

This resulted in a public report by the then Criminal Justice Commission outlining how such a process was not prohibited.

Application of Section 16 Criminal Code (Qld)

In Queensland, the starting point for consideration of the law applicable to ‘double jeopardy’ principles commences with section 16 of the Criminal Code, which relevantly provides that a “person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission…” (emphasis added).

Importantly, the term ‘punished’ is used. As demonstrated below, the authorities determine that the imposition of a disciplinary sanction does not amount to punishment and therefore section 16 (or any double jeopardy principle) does not apply to disciplinary action unless specifically stated within legislation.

For example, in the Corrective Services Act 2006, section 115 provides that a prisoner cannot be prosecuted for a criminal offence if the conduct has been dealt with as a breach of discipline and vice versa.

The law prior to the introduction of the Human Rights Act 2020

The law dating back many years has consistently recognised the distinction between criminal and discipline proceedings and therefore ousted any ‘double jeopardy’ principles from operation across the two jurisdictions.

In R v White; ex parte Byrnes,1 the High Court of Australia held that administrative tribunals charged with the responsibility of hearing and determining breaches of discipline do not sit as a court of law and that ‘disciplinary’ offences are not ‘criminal offences’. It has been stated that the hearing of a disciplinary charge is neither criminal nor civil action.2

The object of discipline proceedings is not to punish or extract retribution, but to protect the public, maintain proper standards of conduct by members and protect the reputation of the organisation.3

In Hardcastle v Commissioner of Police4 the appellant was a member of the Australian Federal Police who was charged with five breaches of the relevant police disciplinary regulations. Those breaches included that he was knowingly concerned in the commission by another police officer of various assaults on civilians. Hardcastle was found guilty of all five charges by applying the civil standard of proof. The matter was first unsuccessfully judicially reviewed and then appealed to the Full Federal Court.

The Full Federal Court unanimously dismissed the appeal. Amongst other things, it was submitted by counsel for the appellant police officer that the discipline proceedings were prohibited because it exposed the officer to ‘double jeopardy’.

At page 597 the Federal Court unanimously stated:

“There is no room for the application of what is sometimes misleadingly called the principle of double jeopardy in this case. If the appellant were charged with, and convicted of, the same unlawful assaults as were the subject of the disciplinary offences he would not face double jeopardy or be punished twice for the same offence. He would be convicted of an offence against the criminal law and be guilty of a breach of the disciplinary code of the Australian Federal Police. The proceedings are essentially different in character and result.”

In Re Seidler,5 the applicant was employed by the Cairns Hospital Board and was charged with stealing a switchboard, the property of the employer. At his trial, the Crown entered a nolle prosequi – withdrawing the charge. Subsequently the employer charged the applicant with two disciplinary offences under the Hospitals Act for the same conduct.

Seidler was found guilty of those two disciplinary offences. On appeal, it was unsuccessfully argued that the previous acquittal of the criminal charges prohibited the disciplinary offences on the basis of ‘double jeopardy’ principles. In denying the application his Honour said:

“This divergency between standards of proof is a strong ground for denying operation to the double jeopardy principles as applicable to criminal and disciplinary tribunals.”

In 1997 New South Wales courts were asked to consider this point in the case of Litchfield.6 In Litchfield’s case, a medical practitioner was subject to disciplinary proceedings for inappropriate sexual conduct with a patient in circumstances where the practitioner had already been acquitted of criminal charges alleging the very same conduct.

The court unanimously rejected a submission that the earlier acquittal operated as a bar to the subsequent disciplinary proceedings. The court noted that it was long established that disciplinary proceedings consequent upon a conviction of criminal proceedings are not barred by the principle of double jeopardy.

The law has been decisively settled in this respect except for one anomaly which occurred in the Queensland Supreme Court in 1994. In Pennisi v Wyvill and O’Sullivan7 a stay was ordered by the court on ‘double jeopardy’ principles in circumstances where a police officer had been convicted of offences and then faced disciplinary action.

This decision of Pennisi appears to have been an ex tempore decision and there is nothing to indicate that the relevant line of authority was brought to the trial judge’s attention. The underlying assumption seems to have been that an officer subject to police disciplinary processes was “punished” for the purposes of s16 of the code by having a sanction imposed upon him. Such a finding was not consistent with the authority discussed above.

In the 2006 Queensland Court of Appeal case of R v NG,8 a student who was sentenced in the Children’s Court for offences and then expelled from school argued he was being twice punished under ‘double jeopardy’ principles for these two actions.

The Court of Appeal unanimously found ‘double jeopardy’ principles were not applicable. The court unanimously declared Pennisi’s Case should not be followed because disciplinary proceedings, due to their nature, do not equate to a punishment within the meaning of section 16 Criminal Code and therefore nor could it be said it was an abuse of process. The appeal was dismissed.

Introduction of the Human Rights Act 2019 in Queensland

On 1 January 2020 the Human Rights Act commenced in Queensland, bringing with it section 34 of the Act:

“A person must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law.”

The Human Rights Act protects the right not to be tried or punished more than once for an offence. This right is based on Article 14(7) of the International Covenant on Civil and Political Rights. Australia ratified this treaty in 1980. The right is also essentially a restatement of the principle found within section 16 Criminal Code.

Although Queensland only introduced human rights legislation in 2020, the Charter of Human Rights and Responsibilities Act has been operating in Victoria since 2006.

In the Victorian Civil and Administrative Tribunal (VCAT) case of Psychology Board of Australia v Ildiri,9 Ms Ildiri had been found guilty of numerous fraud offences under the Crimes Act 1958 (Vic.). The board knew of the convictions. As a result, the board ruled that Ms Ildiri had also engaged in unprofessional conduct under the Health Professions Registration Act 2005 (Vic.).

The tribunal found the disciplinary action did not violate the right not to be tried more than once under section 26 of the Victorian Charter [which is the equivalent of section 34 under the Queensland Human Rights Act]. This was because, consistent with the above-stated law, the purpose of disciplinary proceedings are “primarily to protect the public, and not to punish the practitioner”.

In conclusion

Double jeopardy principles apply within the criminal jurisdiction so a person cannot be twice punished for a criminal offence.

At the same time, it also appears there is little doubt the double jeopardy principle operates within a disciplinary/employment scheme. This means a person could not face a disciplinary sanction twice for the same conduct. The double jeopardy principle does not, however, cross over between the two differing jurisdictions.

No court in Queensland has yet been asked to consider the application of section 34 of the Human Rights Act (Qld). However, it appears likely a court would not depart from the long history of decisions which has concluded double jeopardy prohibitions do not survive across the two different jurisdictions of criminal and discipline/employment. A person can be charged criminally and still lawfully face disciplinary action from their employer.

This article appears courtesy of the Queensland Law Society Occupational Discipline Law Committee. Calvin Gnech is Chair of the committee and the Legal Practice Director of Gnech & Associates.

Footnotes
1 (1963) 109 CLR 665.
2 Public Service Board of New South Wales v Etherton (1985) 1 NSWLR 430 at 432.
3 Hardcastle v Commissioner of Police [1984] 53 ARL 539 at 597.
4 Ibid.
5 (1986) 1 Qd.R. 486.
6 (1997) 41 NSWLR 630.
7 (1994) 74 A Crim R 168).
8 [2006] QCA 218.
9 (Occupational and Business Regulation) [2011] VCAT 1036.

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